Federal sentencing discretion under attack

Posted By Davis & Hoss, pc || 31-Jan-2012

GOP Seeks Big Changes In Federal Prison Sentences

Above is a link to an NPR story running this morning concerning Federal Sentencing Guidelines and the renewed interest by some in congress to take discretion out of the hands of federal judges. Below is the online article. With such small increments of discretion that most of us observe applied in cases, it is hard to believe that this is anything other than an election year motivator.

January 31, 2012

Every year, federal judges sentence more than 80,000 criminals. Those punishments are supposed to be fair — and predictable. But seven years ago, the U.S. Supreme Court threw a wrench into the system by ruling that the guidelines that judges use to figure out a prison sentence are only suggestions.

Republicans in Congress say that's led to a lot of bad results. They're calling for an overhaul of the sentencing system, with tough new mandatory prison terms to bring some order back into the process. Rep. James Sensenbrenner, a Republican from Wisconsin, brought up the subject at a recent hearing.

"A criminal committing a federal crime should receive similar punishment regardless of whether the crime was committed in Richmond, Va., or Richmond, Calif., and that's why I am deeply concerned about what's happening to federal sentencing," Sensenbrenner said.

Since the Supreme Court acted in 2005 to make the sentencing guidelines advisory — not mandatory — Sensenbrenner said, judges in places like New York City have imposed sentences below the guideline ranges almost half the time. But judges only a few hours further north in New York are still following the guidelines.

Former prosecutor Matt Miner — who also served as GOP congressional aide — says that's not justice.

The way you make sure the guidelines get due respect is to make them respectable.

- Douglas Berman, Ohio State University law professor

"We have a federal system. There should be consistency not just in the same courthouse and on the same floor or district by district but across the country, and we're failing in that," Miner says.

Douglas Berman, a law professor and sentencing expert at Ohio State University, said, "The way you make sure the guidelines get due respect is to make them respectable."

A lot of people argue ever since the Supreme Court weighed in, black men have it a lot worse.

Judge Patti Saris of Massachusetts leads the congressionally created U.S. Sentencing Commission. Saris spoke about the issue at a panel sponsored by the American Constitution Society and the American Civil Liberties Union in Washington earlier this month.

"The average sentence for a black male was 20 percent longer than that for a white male ... ," Saris said. "And I think what's important to add there is that no one here is accusing judges of being racist."

So, then, what's going on?

"It's not that the black male sentences are going up. It's that the white male sentences are going down," Saris said.

Berman, the law professor, says judges think many of the suggested punishments are too tough, especially in the areas of corporate fraud and child pornography, where the guidelines call for people who download images of children to sometimes get upwards of 20 years behind bars.

"There's 2,000 child porn cases and about 1,200 of them have below-guideline sentences, and they're all white defendants," Berman said. "And so now I think the easiest explanation for that entire 20 percent — or if not the entire 20 percent, than at least big part of that — is in fact, white child porn downloaders are getting significant leniency."

The sentencing commission studies that feedback, Saris says, and it really tries to make things better. For example, next month the commission will hold a hearing on whether child porn sentences are fair.

"Congress thinks about the world's worst offender when they're setting up a mandatory minimum," Saris said. "They're thinking about the big bad guy that we'd all agree, 'Gee, just send that person away.' But ... often, for every horrible horrible [case] you tell me about, I can think of a situation which is far less severe."

I would urge the commission to maybe sell Congress on the idea that the system is working pretty well.

- Amy Baron-Evans of the Federal Public and Community Defenders

Saris said despite all the criticism, the great majority of judges still give out punishments within the range of the old guidelines, even though they're no longer mandatory. She said she continues to believe the best approach is to keep the advisory guidelines for sentencing and to adjust them as needed based on feedback from judges.

Amy Baron-Evans works for the Federal Public and Community Defenders. She said there's nothing wrong with the way things are going now, and Congress shouldn't take away the discretion that judges have to evaluate each defendant, case by case.

"I would urge the commission to maybe sell Congress on the idea that the system is working pretty well," Baron-Evans said.

But that message can be politically unpopular, with some Republicans suggesting they might propose new mandatory sentences and cut the budget of the sentencing commission.

"I love that everybody wants to talk about how severe the system is," said Michael Volkov, a former prosecutor, at the recent panel discussion in Washington. "I'm sorry, politically, that is going nowhere folks. It's going nowhere."

Former prosecutor Bill Otis, testifying before the House Judiciary Committee last year, gave voice to those concerns.

"The commission either should return to its main job, creating mandatory guidelines, or give the taxpayers a refund," Otis said.

The House Judiciary Committee is planning more hearings on the issue this spring.